Opinion
Nos. S-09168, S-09267.
October 25, 2002.
Appeal from Trial Court Case #4FA-93-00956CI.
Before: FABE, Chief Justice, MATTHEWS, BRYNER, and CARPENETI, Justices.
ORDER
On consideration of the Petition for Rehearing,
IT IS ORDERED:
1. In Reeves v. Alyeska Pipeline Service Co., this court divided evenly on the proper measure of compensatory damages for Alyeska's breach of contract, with two members of the court favoring one of the special verdict's alternative awards and two concluding that none of the verdict's theories correctly decided the issue. Addressing the effect of this divided vote, our opinion concluded "that the votes favoring the greatest degree of affirmance will determine the outcome of this case but that the decision on compensatory damages will have no precedential effect."
Reeves v. Alyeska Pipeline Service Co., ___ P.3d ___, Op. No. 5596 at 2, n. 1 (Alaska, July 19, 2002).
Id.
2. Alyeska has petitioned for rehearing, arguing in part that this court "overlooked the inability of an evenly divided Supreme Court to direct a trial judge to enter a new judgment." In advancing this argument, Alyeska maintains that "an evenly divided Court cannot order a trial judge to enter a new judgment that he did not previously enter."
3. Alyeska's argument misunderstands the nature of the court's ruling on this issue. Although this court was evenly split on the proper measure of damages, all members of the court agreed upon the effect of its divided vote. The court was thus unanimous in holding that the two votes favoring the greatest degree of affirmance should prevail.
4. Having considered the parties' supplemental briefing on rehearing, the court finds no reason to disturb the original ruling. At least one other state supreme court has reached the same conclusion under almost identical circumstances, and Alyeska has cited no convincing authority supporting its position. Accordingly, the court unanimously denies rehearing on this point.
See Ringsby v. Dixon, 496 P.2d 179 (Wyo. 1972).
5. The court also unanimously denies rehearing on Alyeska's contention that the case should be reheard with a fifth justice participating.
6. Alyeska's remaining points address the opinion's ruling on the appropriate measure of damages. Rehearing on these points is denied by an evenly divided vote: Justices Bryner and Carpeneti vote to deny the petition on these points; Chief Justice Fabe and Justice Matthews dissent, voting to grant the petition.
The petition for rehearing is therefore DENIED.